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SIU Director’s Report - Case # 18-TCI-321

Contents:

News Releases for this Case:

French:

Mandate of the SIU

The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving police officers where there has been death, serious injury or allegations of sexual assault. The Unit’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.

Under the Police Services Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether an officer has committed a criminal offence in connection with the incident under investigation. If, after an investigation, there are reasonable grounds to believe that an offence was committed, the Director has the authority to lay a criminal charge against the officer. Alternatively, in all cases where no reasonable grounds exist, the Director does not lay criminal charges but files a report with the Attorney General communicating the results of an investigation.

Information Restrictions

Freedom of Information and Protection of Personal Privacy Act (“FIPPA”)

Pursuant to section 14 of FIPPA (i.e., law enforcement), certain information may not be included in this report. This information may include, but is not limited to, the following:
  • Confidential investigative techniques and procedures used by law enforcement agencies; and
  • Information whose release could reasonably be expected to interfere with a law enforcement matter or an investigation undertaken with a view to a law enforcement proceeding. 
Pursuant to section 21 of FIPPA (i.e., personal privacy), protected personal information is not included in this document. This information may include, but is not limited to, the following:
  • Subject Officer name(s);
  • Witness Officer name(s);
  • Civilian Witness name(s);
  • Location information; 
  • Witness statements and evidence gathered in the course of the investigation provided to the SIU in confidence; and 
  • Other identifiers which are likely to reveal personal information about individuals involved in the investigation.


Personal Health Information Protection Act, 2004 (“PHIPA”)

Pursuant to PHIPA, any information related to the personal health of identifiable individuals is not included.

Other proceedings, processes, and investigations

Information may have also been excluded from this report because its release could undermine the integrity of other proceedings involving the same incident, such as criminal proceedings, coroner’s inquests, other public proceedings and/or other law enforcement investigations.

Mandate Engaged

The Unit’s investigative jurisdiction is limited to those incidents where there is a serious injury (including sexual assault allegations) or death in cases involving the police.

“Serious injuries” shall include those that are likely to interfere with the health or comfort of the victim and are more than merely transient or trifling in nature and will include serious injury resulting from sexual assault. “Serious Injury” shall initially be presumed when the victim is admitted to hospital, suffers a fracture to a limb, rib or vertebrae or to the skull, suffers burns to a major portion of the body or loses any portion of the body or suffers loss of vision or hearing, or alleges sexual assault. Where a prolonged delay is likely before the seriousness of the injury can be assessed, the Unit should be notified so that it can monitor the situation and decide on the extent of its involvement.

This report relates to the SIU’s investigation into serious injuries sustained by a 48-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On November 1, 2018, at 3:20 a.m., the Toronto Police Service (TPS) notified the SIU of the Complainant’s injury. According to the TPS, on October 31, 2018, about 8:00 p.m., TPS officers attempted to stop a vehicle in the parking lot of a motel on Kingston Road in Toronto for suspected stolen plates attached to the vehicle. The driver [now known to be the Complainant] refused to stop and rammed several plainclothes and uniformed officers’ cruisers, as well as a supporting structure for a sign at the motel. The entire incident took place in the parking lot. The Complainant was arrested and taken to the Sunnybrook Health Sciences Centre Hospital with spinal fractures. 

The Team

Number of SIU Investigators assigned: 6
Number of SIU Forensic Investigators assigned:

Complainant:

48-year-old male interviewed, medical records obtained and reviewed


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed 

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed

Additionally, the notes from one other officer were received and reviewed.


Subject Officers

SO #1 Interviewed, and notes received and reviewed
SO #2 Interviewed, and notes received and reviewed
SO #3 Interviewed, and notes received and reviewed



Evidence

The Scene

The scene of the incident was limited to the parking lot of a motel on Kingston Road. Vehicle entry and exit for motel guests was from and to Kingston Road, only.

Scene Diagram

Scene diagram

Communications Recordings

Starting at 7:51 p.m., numerous police officers were heard signing on and establishing their locations in police vehicles as their surveillance of the motel parking lot and motel office, and the pickup truck operated by the Complainant developed.

A plan was formulated to induce the Complainant to exit the motel room in which he was staying with CW #3, by having a ruse-call made to the room by motel management asking the Complainant to attend the office to respond to a concern regarding his vehicle.

There was dialogue about the association of the Complainant with CW #3 and police officers’ observations of people coming and going from the motel property that included the rapid vehicular departure of a man with an open bottle of alcohol.

Information about the pickup truck and the occupants of the room was relayed to the police officers in the vicinity of the motel.

The ruse-call was made to the hotel room at about 9:30 p.m., and the police officers monitoring the parking lot were informed by the motel management that the Complainant would be moving the pickup truck.

At about 9:33:28 p.m., the indiscernible and anxious voice of a male police officer is heard on the police radio, followed by the same voice but with an agitated tone at 9:33:36 p.m., shouting, “10-33 [the motel].”

At about 9:34:06, a male police officer [believed to be WO #1] was heard repeating the 10-33 code and requesting an ambulance and multiple officers to attend the motel.

By about 9:35:10 p.m., the same male police officer who repeated the 10-33 code, transmitted again the need for an ambulance and more uniformed officers’ patrol cars and states that the male (meaning the Complainant) had rammed two police vehicles, had a cut to his head and that the Complainant was still “combative.” At this time, the Complainant is in police custody.

At about 9:37:29 p.m., at least two police officers’ voices were heard on the police radio and the sound of a female [believed to be CW #3] voice was shouting and swearing at the police as she was being pulled out of the pickup truck and into police custody.

Video/Audio/Photographic Evidence


Closed Circuit Television (CCTV) Data


The following is a summary of the CCTV data obtained from the motel, based on the various camera angles. Because the time was not verified as accurate, and the two Digital Video Recording (DVR) systems had different times, the exact times used should not be relied upon. For the purposes of this summary, the writer used the time stamp from DVR system #1 and adjusted the time for the cameras on DVR system #2 by subtracting three minutes and 29 seconds.
The involved vehicles were:

  • TPS vehicle #1 - a green 2014 Ford Fusion driven by WO #1 with WO #2 as the passenger;
  • TPS vehicle #2 – a silver 2016 Dodge Caravan driven by SO #1;
  • TPS vehicle #3 – a silver 2014 Dodge Caravan driven by SO #3 with WO #3 as the passenger; and
  • TPS vehicle #4 – a fully marked Ford Taurus driven by WO #5 with WO #4 as the passenger.

At 9:26:18 p.m., SO #2 walked onto the property from Kingston Road and went into the motel office. WO #1 and WO #2 were parked on the west side of the parking lot about halfway through the lot with the front of the vehicle facing west, away from the motel, in TPS vehicle #1. CW #1 descended the exterior stairs and went to his vehicle in the parking lot.

At 9:29:52 p.m., a person [now known to be the Complainant] exited a room at the far north end of the motel. An unrelated vehicle entered and parked in front the room or perhaps the room next to it to the south. A second person [now known to be CW #3] exited the room. The Complainant and CW #3 walked toward the involved Mazda pickup truck which was parked in the lot across from the room.

At 9:30:11 p.m., WO #1 started TPS vehicle #1 and began backing out of the parking spot. A second unrelated vehicle drove northbound through the parking lot and parked next to the first unrelated vehicle in front of the room.

At 9:30:27 p.m., SO #1 entered the parking lot from Kingston Rd, and two seconds later, SO #2 exited the motel office and started walking northbound in the parking lot. SO #1 passed SO #2.

At 9:30:34 p.m., WO #1 drove north in the parking lot toward the involved pickup truck. SO #1 also drove northbound through the parking lot toward the pickup truck. SO #1 was behind and to the passenger side of WO #1’s vehicle. SO #2, on foot, walked northbound in the parking lot towards the pickup truck from the area of the motel office. The civilian witness, CW #1, walked from his vehicle toward the exterior staircase toward his room.

At 9:30:39 p.m., the Complainant started backing out of his parking spot as the two TPS vehicles approached. WO #1 stopped, and at 9:30:44 p.m., WO #1 and WO #2 exited their vehicle. They approached the Complainant. The Complainant drove slowly forward toward the parking spot he had just backed out of. The Complainant then reversed quickly toward the curb at the north end of the parking lot. At about the same time, SO #1 reversed toward where SO #2 was walking. The Complainant stopped reversing and quickly accelerated forward.

At 9:30:50 p.m., SO #3 and WO #3 entered the parking lot from Kingston Road

At 9:30:55 p.m., the pickup truck struck TPS vehicle #2 operated by SO #1. The Complainant accelerated southbound, through the parking lot with sparks flying and leaving a scratch in the asphalt. An object appeared to be discarded out of the passenger side of the pickup truck. WO #2 ran southbound through the parking lot from the north end toward the south, after the Complainant. SO #2 ran southbound through the parking lot while talking on his police radio. SO #2 and WO #2 were followed on foot by SO #1 and WO #1.

At 9:31:01 p.m., the second collision occurred; (the collision of the pickup truck driven by the Complainant and the TPS vehicle driven by SO #3.) The pickup truck also struck the post of the breezeway. The Complainant attempted to open the driver door. It opened a few inches but no further due to the pickup being too close to the post.

At 9:31:07 p.m., SO #3 ran around the front of the pickup truck from the passenger side of the pickup truck, as though he had just exited his vehicle. SO #3 had his firearm drawn and pointed at the Complainant. SO #2 ran up on foot from the driver-side of the pickup truck and drew his firearm and pointed it at the Complainant.

WO #2 ran up from the passenger side of the pickup truck to the front of it and at 9:30:10 p.m., SO #2 kicked at the driver’s door window of the pickup truck with his left foot.

At 9:31:12 p.m., WO #3 ran up from the passenger side of the pickup truck to the front of it. WO #2 moved to the driver’s side of the pickup truck and pointed his firearm at the Complainant. SO #2 attempted to open the driver’s door but it only opened a few inches and bounced off the post. WO #3 moved to the driver’s side and pointed her firearm at the Complainant. WO #2 moved back around to the front of the pickup truck.

At 9:31:15 p.m., SO #1 ran up from the driver’s side of the pickup truck to the driver’s door area with his firearm in his right hand and a black object consistent with a police radio in his left hand.

At 9:31:18 p.m., WO #1 ran up from the driver’s side of the pickup truck with a police radio in his right hand.

At 9:31:19 p.m., WO #3 began striking the pickup truck’s windshield with an object [now known to be her expandable baton] in her right hand.

At 9:31:25 p.m., after several strikes with his police radio, SO #1 broke the driver door window. SO #1 reached inside the Mazda pickup truck with his left hand and grasping the Complainant’s left arm, pulled the Complainant partially out of the driver door window. The Complainant’s right arm was out the window above his head also, but appeared to be free of anyone grasping it.

At 9:31:30 p.m., SO #2, SO #3 and WO #3 moved closer to the pickup truck.

At 9:31:31 p.m., the Complainant came out the driver door window with SO #1, SO #2 and SO #3 hands on as they extracted him from the driver’s seat. The Complainant’s hands were both outstretched. It appeared as though the Complainant’s right hand may have been grabbed by SO #3. As the Complainant came out of the window and down to the ground, the Complainant’s hands made contact with the ground as if to brace himself.
At 9:31:33 p.m., the Complainant was pulled to the ground. The Complainant was pulled on his stomach with SO #2 at the Complainant’s left side, SO #3 at the Complainant’s right side, and SO #1 near the Complainant’s head.
Three seconds later, SO #3 put his left knee on the Complainant’s back and kneeled on the Complainant. SO #2 was standing and delivered a light kick to the Complainant’s left abdomen area with his right foot.

At 9:31:42 p.m., SO #1, SO #2 and SO #3 struggled to handcuff the Complainant. SO #2 was at the Complainant’s left, SO #3 at the Complainant’s right, and SO #1 was near the Complainant’s head. With his left knee still on the Complainant’s back, SO #3 delivered several punches and elbows with his right arm which began landing on the Complainant’s body and progressed up to the Complainant’s head.

At 9:31:45 p.m., SO #2 appeared to take handcuffs from his left rear pocket or waist area and by about 9:31:54 p.m., the Complainant’s left hand appeared to be behind his back. The Complainant’s left hand was secured in a handcuff. The Complainant’s right hand appeared to be on the ground in front of his face. From a crouched position, SO #2 delivered three strikes to the Complainant’s left abdomen area with his right knee as the Complainant was being rolled over to his left which thereby exposed more of his back for the third strike.

At 9:31:59 p.m., with his right elbow and his weight behind it, SO #3 struck the Complainant forcefully in the head area.

By 9:32:13 p.m., the Complainant was clearly handcuffed with his hands behind his back. SO #2 stood up. Then SO #3 stood up. SO #1 remained kneeling with his left hand near the Complainant’s head or at the Complainant’s neck area. The Complainant continued to roll around on the ground. SO #3 and WO #3 knelt down and assisted SO #1 to control the Complainant.

At 9:33:01 p.m., SO #3 stood up. WO #3 remained with her left knee on the Complainant’s back assisting SO #1 to hold the Complainant down on the ground. There was blood visible on the ground near the Complainant’s head.

At 9:33:28 p.m., SO #1 stood up and SO #3 and WO #3 continued to hold the Complainant on the ground. WO #3 stood up. SO #3 remained kneeling on top of the Complainant as the Complainant’s legs moved around.

At 9:33:33 p.m., SO #3 continued hands on with the Complainant, applying pressure with his right knee to the Complainant’s back. It was not clear what SO #3 was attempting to accomplish although the Complainant was not lying still.

At 9:34:02 p.m., CW #3 was pulled out of the pickup truck. The Complainant rolled around and his legs were thrashing. SO #3 continued to control the Complainant’s handcuffed hands. SO #1 returned to assist SO #3 who appeared to have his left knee holding the Complainant’s head against the ground.

At 9:35:24 p.m., SO #3 gripped onto the Complainant’s right wrist and applied pressure in a wrist-lock fashion as SO #1 and SO #3 held the Complainant on his left side. SO #1 was primarily controlling the Complainant’s legs and by 9:35:32 p.m., the Complainant displayed his last physical signs of resistance.

At 9:35:49 p.m., SO #3 released his grip on the Complainant’s right wrist. SO #3 re-positioned himself so that he was kneeling on the Complainant with his right knee while holding the Complainant’s right elbow in place against the Complainant’s body.

At 9:37:45 p.m., SO #1 and SO #3 sat the Complainant up and leaned him against the post. The Complainant appeared limp. The left side of the Complainant’s head was bloodied.

TPS In-Car Camera System (ICCS) Footage


The ICCS footage recorded by the equipment in WO #5’s cruiser did not reveal any information that was not already known from the motel CCTV data, and the information obtained from the Complainant and subject officers.

Physical Evidence

In addition to the damage to the vehicles, two wooden support posts for the breezeway over the office entrance to the motel were damaged. There was wood debris found on the ground consistent with the posts having been struck by the pickup truck and the debris projected to the south towards Kingston Road There was no apparent structural damage to the building.

There was a set of tire marks which commenced at the north end of the parking lot. The tire marks led directly from the north end of the parking lot to the area of impact for the first collision and continued to the second collision where the pickup truck came to rest.

There was a pool of blood located under the breezeway to the east of a pickup truck, consistent with the Complainant being removed from the driver’s window of the vehicle and lying on the ground in close proximity to the pickup truck.

Expert Evidence


SIU Collision Reconstructionist’s Observations


The surveillance video from the motel as it related to the two motor vehicle collisions involving the Mazda pickup truck was reviewed. The Crash Data Recorder (CDR) data was consistent with the speed, braking, steering and acceleration of the two TPS vehicles immediately prior to and during the collisions.

At about the point in time where the CDR recording commenced, five seconds prior to the collision, SO #1 was stopped. He then reversed and turned the steering wheel to the left, then braked, switched to drive, and drove forward with the steering wheel turned to the right towards the accelerating pickup truck. It was unclear why SO #1 braked, steered, and accelerated his vehicle in the manner he did immediately prior to the first collision involving the Mazda.

Five seconds prior to the collision, SO #3 had just entered the parking lot from Kingston Road, travelling northbound and had briefly stopped in the driveway prior to the front entrance breezeway. SO #3 moved forward and turned to the left to go around the breezeway, then to the right as he went around it. It was unclear why SO #3 maneuvered his vehicle to the west, left of the support posts immediately prior to the second collision involving the pickup truck, rather than drive straight forward and go under the breezeway to continue into the parking lot.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the TPS:
  • Booking video;
  • Communication recordings;
  • CAD-Event Details;
  • CDR data for the involved vehicles;
  •  Exhibit List;
  • Fullcase;
  • CAD;
  • ICCS footage;
  • MVC Field Notes;
  • MVC Report;
  • Notes of all subject officers, witness officers and an undesignated officer;
  • Procedure-Use of Force and Equipment;
  • Procedure-Suspect Apprehension Pursuit;
  • Scene Photographs;
  • Scene Photographs marked by subject officers;
  • Use of Force Training Records for all subject officers; and
  • Wanted Poster.

Incident Narrative

The material facts in question are relatively clear on the weight of the reliable evidence collected by the SIU, which included statements from the Complainant and the three subject officers, as well as video recordings of the arrest and the events that preceded it. On the evening in question, the subject officers were on duty in plainclothes and part of a team investigating potential human trafficking as part of a police operation. The team came across a pickup truck parked at the motel with licence plates that were registered as “unattached”. They came to learn that the truck was being operated by guests staying at the motel. Deciding that they would investigate the guests in relation to the potential theft of the truck, the team developed a ruse to lure them out of their room. A call was placed by SO #2 to the Complainant’s room, advising the guests that they would have to attend at the motel front office to register their vehicle.

The guests staying in the room were the Complainant and his associate, CW #3. Instead of going to the motel office, the two exited their room and made their way onto the parking lot toward their vehicle and entered it. As they did so, WO #1 and WO #2, in their unmarked police sedan which had been situated in the same parking lot, began to drive in the direction of the pickup truck. It was their intention to stop the vehicle and investigate its occupants. The two stopped their sedan in the vicinity of the truck and approached it on foot as it began to reverse out of its parking spot. The officers announced themselves as police officers and directed them to stop. The Complainant paused briefly, but then accelerated rearwards before coming to a stop and moving forward around the unmarked police sedan. As it did so, the Complainant came upon a minivan being operated by SO #1. The officer had positioned his van in an attempt to block the pickup truck. The Complainant continued forward and the vehicles collided. The Complainant maneuvered past SO #1’s van and collided with another unmarked police minivan, this one driven by SO #3. The collision resulted in the pickup truck being wedged between SO #3’s minivan (on its passenger side) and a pillar supporting a roof extending over the front office area of the motel (on its driver side).

Following the pickup truck’s collision with SO #3’s minivan, officers rushed toward the driver side of the truck with their firearms drawn and pointed at the Complainant. They ordered him out of vehicle, but the driver door was jammed shut against the pillar. SO #1 struck and broke the driver door window with his police radio and, together with the assistance of SO #3 and SO #2, the latter having approached the scene on foot, pulled the Complainant out through the window and forced him onto the ground. Face down and refusing to surrender his hands, the Complainant struggled against the officers’ efforts to restrain him in handcuffs. The subject officers were concerned that the Complainant might be armed with a firearm and used force to secure the Complainant’s arms as quickly as possible. During the struggle: SO #3, positioned on the Complainant’s right side, punched the Complainant’s right side multiple times and delivered several elbow strikes; SO #2, on the Complainant’s left side, kicked him once to the torso and then kneed him three times; and, SO #1, using his handgun, struck the Complainant’s back once. Once the Complainant was handcuffed, he was sat against one of the motel’s pillars waiting for an ambulance to arrive.

Relevant Legislation

Section 25(1), Criminal Code -- Protection of persons acting under authority

25 (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law
(a) as a private person,
(b) as a peace officer or public officer,
(c) in aid of a peace officer or public officer, or
(d) by virtue of his office,
is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

Analysis and Director's Decision

Members of the TPS arrested the Complainant in the parking lot of a motel on Kingston Road in the evening of October 31, 2018. Following his arrest, the Complainant was taken to hospital and diagnosed with a number of injuries, including fractures of his vertebrae. SO #1, SO #2, and SO #3 used force against the Complainant in the course of his arrest and were identified as the subject officers in the SIU investigation. For the reasons that follow, I am satisfied there are no reasonable grounds to believe that any of them committed a criminal offence in connection with the Complainant’s arrest and injuries.

While I appreciate that there is conflicting evidence from the witnesses regarding the level of the Complainant’s resistance, I am unable to accept evidence that the Complainant was not resisting arrest. This evidence either comes from a source who would not be well positioned to see the Complainant’s level of resistance, or is belied by other witnesses and the video recording.

Pursuant to section 25(1) of the Criminal Code, police officers are immune from criminal liability for force used in the course of their duties provided the force in question is no more than is reasonably necessary in the execution of an act they are required or authorized to do by law. I accept that the officers were proceeding to lawfully arrest the Complainant at the time that force was used to extract him from the car and effect his arrest. The officers were entitled to approach the Complainant and CW #3 to investigate them for potential offences under the Highway Traffic Act and Criminal Code given information in their possession regarding the “unattached” licence plates that were affixed to the pickup truck in question. Thereafter, when the Complainant attempted to elude the officers in his vehicle, leading to two collisions in the process and endangering the lives of the officers in those vehicles as well as his own and that of CW #3, they were further within their rights in seeking to arrest him.

With respect to the force that was used against the Complainant, I am unable to reasonably conclude that it was excessive in the circumstances. The Complainant had just caused two motor vehicle collisions in a very apparent attempt to avoid the police. His resolve to escape police apprehension and to resort to violence in the process were clear. On this record, it seems to me the officers acted reasonably in breaking the driver door window of the Complainant’s pickup truck when the driver door would not open, pulling the Complainant through the window and forcing him to the ground. Once on the ground, the Complainant resisted his arrest and refused to surrender his arms. By this time, the officers knew who they were dealing with precisely, which information gave them heightened concern that the Complainant might be armed with a gun. The subject officers responded to the Complainant’s resistance with force of their own, namely, multiple punches, and elbow and knee strikes; a kick; and, use of their combined manpower to wrestle the Complainant into submission. While not an insignificant use of force, I am reasonably satisfied that it fell within the range of what was necessary to overcome the Complainant’s resistance in light of the Complainant’s demonstrated violence immediately before and during his arrest, and the officers’ well-grounded fears that he may have a firearm in his possession. In arriving at this conclusion, I am mindful that police officers, in the heat of the moment, are not expected to measure their responsive force to a nicety; what is required is a reasonable response, not an exacting one: R. v. Baxter (1975), 27 CCC (2d) 96 (Ont. C.A.); R. v. Nasogaluak, [2010] 1 SCR 206.


Date: August 26, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit